• Appeals Court declared a mistrial and ordered the man freed because the victim had moved on with life and a long time had passed.
• It said the two charges were not read separately for him to plead to each; it rejected his claim he did not understand as they were only in English but they were in Maasai.
Image: FILE
When Amos Memusi Kiok was arraigned in 2012, the prosecutors cited two charges related to his defiling an eight-year-old, asked him to plead but did not specify to which charges.
This 'slight' mishap has freed him, 10 years after he was serving alife sentence.
It took the scrutiny of the Court of Appeal court of appeal to free the man who said at the time of arraignment he was 23 years old.
The three-judge bench described the magistrate and the prosecution’s handling of the case as bungling that precipitated a mistrial.
The charges were raping KK repeatedly and indecent touching of the boy's backside. He had plead guilty to both charges, making the trial and conviction swift.
He had attempted to appeal the conviction and sentence at the High Court, arguing he pleaded guilty erroneously because the charges were read in English, a language he claimed he did not understand. There was no reading or interpretation in Maasai, he argued, making his trial a farce.
But court record showed that when he plead guilty, Kiok in fact expressed remorse for his action and even promised to foot the medical bill for the boy’s anal reconstructive surgery.
The High Court dismissed his appeal in 2014.
Kiok turned to the Court of Appeal, maintaining his guilty plea was equivocal and improperly taken because he was not sufficiently informed in a language he understands, hence, did not know what he was being charged with.
But this line proved a whopper.
What saved the day was his new advocates scrutinising his charge sheet and the trial records.
They found it to have been defective because while the two charges were read to him, he was not called to plead to both of them separately. This means, with only one plea response, it is not clear for which charge he admitted guilt or for which offense he was convicted.
“It was submitted...that he was charged with two counts of separate and distinct offences and that the trial court proceedings do not indicate whether the charges and particulars of both counts were read out to the appellant; that the proceedings indicate that “the substance of the charge and every element thereof has been stated to the accused in Maasai...
"From the proceedings, it was not clear as to which count and in respect of which offence the appellant is said to have entered his plea of guilty hence, the plea was equivocal and not properly taken,” the papers read.
The magistrate’s court was also faulted for not informing the man of his rights to obtain or be assigned legal representation at the state’s expense, given that he faced a serious offence with severe sanctions if found guilty.
The prosecution put a spirited defense but fell short.
The court found that the charge sheet was fatally defective and that the conviction and sentence could not be allowed to stand. It declared a mistrial, which would necessitate a retrial.
However, it said that given that Kiok had been in jail for 10 years and the victim had moved on with his life, it was inappropriate to order a fresh hearing by the magistrate and have the victim relive his childhood trauma.
It ordered the man released in a July 28 judgement.
“…. taking into consideration that the appellant has spent over 10 years in custody and given the fact that the witnesses may not be readily available and to have the complainant rehash the ordeal he underwent whilst he was aged eight, we are of the considered opinion that this would not be a proper case to order a retrial as it would not serve the interests of justice,” the judgment read.